397. Receiver may be Appointed when Security Precarious or Insufficient.3 32

A receiver may be appointed by the court or judge thereof in which a foreclosure action is pending when it appears.

(1) that the mortgaged property is in danger of being lost, removed, or materially injured, or (2) that the condition of the mortgage.has not been performed, that the rents and profits of the property are subject to the mortgage, and that the property is probably insufficient to discharge the mortgage obligation.33

32 See Code of Civil Procedure, section 564, subd. 2. The court has no power to appoint a receiver except as provided for by statute. The parties cannot confer such jurisdiction by stipulation: Scott Hotchkiss, 115 Cal. 89, 94, 47 Pac. 45; Baker v. Varney, 129 Cal. 564, 79 Am. St. Rep. 140, 62 Pac. 100.

V.

33 The Code reads: "That the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgage debt.' (It was applied in Societe Francaise v. Selheimer, 57 Cal. 623, and Montgomery v. Merrill, 65 Cal. 432, 4 Pac. 414.) But in Locke v. Klunker, 123 Cal. 231, 235-238, 55 Pac. 993, the court pointed out that although the mortgaged property was probably insufficient to satisfy the secured obligation, in the absence of a provision in the mortgage by which it was to include the rents and profits, the court was not authorized to appoint a receiver. And in other cases it is held that the receiver could not be appointed in the absence of such an agreement, as the estate remains in the mortgagor in his character of owner, and must continue to remain so, with all the incidents of ownership, until by a foreclosure and sale a new

Liens-41

398. Attorney's Fee When Allowable to be Fixed By Court.34

Where a mortgage secures an attorney's fee to be paid the mortgagee in case of foreclosure, owner is substituted: Guy v. Ide, 6 Cal. 99, 65 Am. Dec. 490; San Jose etc. Bank of Sav. v. Bank of Madera, 121 Cal. 543, 54 Pac. 85; Baker v. Varney, 129 Cal. 564, 79 Am. St. Rep. 140, 62 Pac. 100.

Likewise, during the period of redemption, although the mortgagor is insolvent, the purchaser of land has no right to have a receiver of the rents and profits of the land appointed, but is restricted to an action to recover them: West v. Conant, 100 Cal. 231, 34 Pac. 705. See sections 167 and 324, and 285 through 287. Contra, Shores v. Scott River Co., 21 Cal. 135.

In Bank of Woodland v. Stephens, 137 Cal. 458, 70 Pac. 293, where a receiver had been appointed of the rents, income and profits of mortgaged land during the pendency of the foreclosure action, the question of the regularity of the appointment was not raised.

84 Stats. 1873-74, p. 707, c. 474, effective March 27, 1874, entitled "An act to abolish attorneys' fees and other charges in foreclosure suits," provides: "In all cases of foreclosure of mortgages the attorneys' fees shall be fixed by the court in which the proceedings of foreclosure are had, any stipulation in said mortgage to the contrary notwithstanding." In view of its title, this act is construed to refer to attorneys' fees provided for in the mortgage, and to have no application where none are provided. The act merely gives the court power to fix the fee at any sum not exceeding the amount stipulated for by the mortgagee; it cannot allow a fee greater than that amount: Monroe v. Fohl, 72 Cal. 568, 14 Pac. 514; Hewitt v. Dean, 91 Cal. 5, 14, 27 Pac. 423; Hotaling v. Monteith, 128 Cal. 556, 61 Pac. 95.

Compare Hildreth v. Williams (Cal.) 33 Pac. 1113. See, also, Alden v. Pryal, 60 Cal. 215, 220, and Bonestell v. Bowie, 128 Cal. 511, 516, 61 Pac. 78, cited section 260, note 42, latter part, above.

the court on rendering judgment may, at its discretion, allow the mortgagee a reasonable sum not exceeding that agreed upon by the parties35 to reimburse him for any special expense actu

This statute was codified by the amendment to Code of Civil Procedure, section 726, effective February 26, 1901, as follows: "In such action the court may, by its judgment, direct the sale of the encumbered property (or so much thereof as may be necessary), and the application of the proceeds of the sale to the payment of the costs of court, and the expenses of the sale, and the amount due plaintiff, including, where the mortgage provides for the payment of attorneys' fees, such sum for such fees as the court shall find reasonable, not exceeding the amount named in the mortgage.'

Attorney's fees stipulated to be paid are not the cause of action, but, like the costs, a mere incident to it: Carriere v. Minturn, 5 Cal. 432; Monroe v. Fohl, 72 Cal. 568, 571, 14 Pac. 514; White v. Allatt, 87 Cal. 245, 248, 25 Pac. 420.

See section 604 and note, below.

35 The fee is to be fixed by the court at its discretion, not exceeding the stipulated sum: Carriere v. Minturn, 5 Cal. 432; Monroe v. Fohl, 72 Cal. 568, 571, 14 Pac. 514. Compare Gronfier v. Minturn, Cal. 492; Moran v. Gardner, 82 Cal. 96, 101, 23 Pac. 6; Woodward v. Brown, 119 Cal. 283, 309, 63 Am. St. Rep. 108, 51 Pac. 2.

So a stipulation of the parties as to what is a reasonable sum is not controlling: Grangers' Business Assn. v. Clark, 84 Cal. 201, 206, 23 Pac. 1081.

Where an attorney brought an action and tried it, no further evidence of employment is necessary. "The duty of fixing the amount of an attorney's compensation is cast upon the court, and no evidence of the value of services is necessary'': Woodward v. Brown, 119 Cal. 283, 309, 63 Am. St. Rep. 108, 51 Pac. 2: Edwards v. Grand, 121 Cal. 254, 257, 53 Pac. 796; Security etc. Co. v. Mattern, 131 Cal. 326, 333, 63 Pac.

ally incurred36 for an attorney's services in the foreclosure action. Where the sum fixed by the trial court is unreasonable, it will be corrected

482; Hellier v. Russell, 136 Cal. 143, 68 Pac. 581; McNamara v. Oakland Bldg. etc. Assn., 131 Cal. 336, 347, 63 Pac. 670; Montgomery v. Merrill, 62 Cal. 385, 393.

The fact that a case was commenced in and tried before the court rendering the judgment afforded sufficient evidence of the services of an attorney, and the court had the discretion to fix the fee without calling for the opinion of witnesses to assist it: Hotaling v. Monteith, 128 Cal. 556, 558, 61 Pac. 95.

A verdict of the jury is merely advisory: Stockton Sav. etc. Soc. v. Donnelly, 60 Cal. 481, 494.

Neither an averment nor a finding of fact as to what is a reasonable fee is necessary: Carriere v. Minturn, 5 Cal. 435; First Nat. Bank of Riverside v. Holt, 87 Cal. 158, 161, 25 Pac. 272; White v. Allatt, 87 Cal. 245, 248, 25 Pac. 420; McNamara v. Oakland Bldg. etc. Assn., 131 Cal. 336, 347, 63 Pac. 670. See, also, Orange Growers' Bank v. Duncan, 133 Cal. 254, 257, 65 Pac. 469.

Where an averment in a complaint that a certain sum, not exceeding the amount stipulated for, is a reasonable sum is supported by the evidence at the trial, and the answer denies its reasonableness, but no evidence is offered to support the denial, the court is justified in allowing the sum claimed: Avery v. Maude, 112 Cal. 565, 44 Pac. 1020. See, also, Ogden v. Packard (Cal.), 35 Pac. 642, where the appellate court held that it could not from the judgment-roll alone determine the fee allowed to be unreasonable.

36 Merely Fee Actually Incurred to be Allowed.So where the action is brought and prosecuted by the plaintiff personally, a counsel fee cannot be allowed: Patterson v. Donner, 48 Cal. 369, 380; Bank of Woodland v. Treadwell, 55 Cal. 379.

"Nor is such allowance in the nature of a penalty, but only a provision against an actual expense to be

by the supreme court on appeal.37 Where judgment is taken by default, an attorney's fee cannot, in the absence of a special prayer therefor, be allowed.38

incurred by the creditor on account of the failure of the debtor to fulfill his contract": Carriere v. Minturn, 5 Cal. 435.

A mortgagee "cannot be allowed any sum for counsel fees for services rendered or to be rendered to it [in a foreclosure action], unless that attorney be entitled to recover it to himself. The object of the law allowing counsel fees is not to afford an opportunity, under cover of the name, for a speculation on the part of the creditor, but to reimburse him, in a proper amount, for a sum which he pays, or be comes liable to pay, or to relieve him of the burden of paying counsel fees': Bank of Woodland v. Treadwell, 55 Cal. 379.

So where a corporation mortgagee employed an attorney at a fixed salary to attend to its legal business, and it appears that any fee allowed would belong to the mortgagee, no fee is allowable: Bank of Woodland v. Treadwell, 55 Cal. 379.

The signature of an attorney to the complaint in foreclosure, however, authorizes the presumption that he was employed by the plaintiff to prosecute the action and that he had become liable to pay him a reasonable fee for his services: Avery v. Maude, 112 Cal. 565, 44 Pac. 1020; Woodward v. Brown, 119 Cal. 283, 309, 63 Am. St. Rep. 108, 51 Pac. 2.

37 Grangers' Business Assn. v. Clark, 84 Cal. 201, 207, 23 Pac. 1081.

38 Judgment by Default.-Where judgment in a foreclosure action is taken by default, and there is no special prayer for attorney's fees, but merely for "costs of suit," none are allowable: Brooks v. Forington, 117 Cal. 219, 48 Pac. 1083.